A.R. Tiwari, J.@mdashThe unsuccessful Plaintiff has filed this appeal u/s 96 of the CPC against the judgment and decree dated 29.2.1980 passed in C.O.S. No. l-A/74 by Additional Judge to the Court of District Judge. Shajapur.
2. Briefly stated, the facts of the case are that the Appellant filed the aforesaid civil suit for the relief of specific performance of the contract to purchase agricultural land and in the alternative for decree of refund of the carnest money of Rs. 1,000.00 paid by the Appellant in pursuance of the contract. The agricultural land is situated in village Dasipura. Tehsil Shajapur. It is recorded in the name of Idol Murti Shri Sitaram installed in the temple. The manager of the temple, Jamunadas, entered into a contract on 1.12.1968 to sale the aforesaid agricultural land having area of 3.178 hectares and charged to land revenue of Rs. 17.50 Ps. and received the sum of 1.000.00 as earnest money. The consideration fixed in the contract was Rs. 18,000.00. As Jamunadas did not perform the contract and the Appellant was ready and willing to perform his part of the contract, he filed the aforesaid civil suit against Respondents No. 1. In this Court Respondent No. 2 (State of Madhya Pradesh) was impleaded as a party. The claim was opposed by Respondent No. 1. On evaluation of the evidence, the trial Court held that the aforesaid contract was void and unenforceable on the ground that the manager Jamunadas had no power to make contract in respect of the property owned and possessed by Respondent No. 1. The suit was. therefore, dismissed. Aggrieved by the judgment and decree, the Appellant has filed this appeal and renewed the prayer.
3. It is noticed that while dismissing the suit of specific performance, the trial Court has also declined the relief of refund of the earnest money.
4. I have heard Shri Suresh Garg, learned Counsel for the Appellant; Shri N.P. Pandey. learned Counsel for Respondent No. 1; and Shri Piyush Mathur, learned Deputy Government Advocate for Respondent No. 2.
5. Shri Garg submitted as under:
(a) The contract is wrongly held as void and unenforceable.
(b) The relief of specific performance is wrongly refused.
(c) In any case the decree for refund of the money was required to be passed.
6. So far as the question of nature of contract and relief of specific performance arc concerned, Shri Pandey has dubbed the aforesaid contentions as non meritorious. As regards the question of refund of earnest money, he submitted that Respondent No. 1 was willing to return the money but the Appellant himself elected not to receive the same.
7. I proceed to examine the worth of the rival contentions.
8. The material issue framed in the case is extracted below:
9. The trial Court concluded that Jamunadas had no authority in law to make a contract of sale of the property belonging to Idol Shri Sitaram temple.
10. PW-1 Pooranmal stated about the contract marked Ex. P/1. There is nothing in the statement as regards the power and authority of Jamunadas to alienate the property. PW-2 Inayat Hussain (Plaintiff) also does not throw any light as to the authority of Jamunadas. PW-3 Ramchandra speaks of contract but not of authority as such. PW-4 Chhongmal was examined to prove Ex. P/1. DW-1 Satyanarayan emphatically stated that Jamunadas did not discuss the matter of alleged contract with the persons belonging to Maheshwari Samaj. He further stated that steps were taken to remove Jamunadas from the office of the manager. The evidence thus docs not show any thing as regards the validity of the contract sought to be enforced. The conclusion reached by the trial Court is thus well supported from the evidential material.
11. The counsel for the Appellant was unable to show as to how Jamunadas had the requisite power to make the contract of sale of the property.
12. In 1981 JLJ 766 (Banwarilal (Seth) v. Edwin Bhagirath and Anr.), it is held as under :
If, as we have found, the suit property is a trust property, then, in our opinion, the power of attorney (Ex. P-10-A) did not furnish requisite authority to Shri Zonathan to transfer the same by sale or otherwise on behalf of the U.C.M.S. (U.S.A.). It is true that the power of attorney does contain a stipulation authorising Shri Zenathan to sell the properties of U.C.M.S. (U.S.A.) But neither the constitution of the U.C.M.S. (U.S.A.) nor any other material has been placed on record to enable us to know the manner in which the said Corporation functions. A trustee as such no doubt is legal owner of the property, the beneficial ownership vesting in cestui que trust Novertheless he is not the full owner of the property in the real sense of the term, because there is a beneficial interest and the ownership therein is carved out in the property. The legal ownership which rests in the trustee is for the purposes of the trust and the administration of the provisions of the trust. (See : Ramabai Govind v. Raghunalh Vasudeo AIR 1951 Bom 106). Therefore, it is only for the provident administration of a particular charity that the trustees have the power to sell the trust properties.
13. The property is said to be trust property. The aforesaid Jamunadas is not shown to be invested with the power of disposition. The contention is, therefore, not well founded.
14. Section 20 of the Specific Relief Act, 1963 spells that the jurisdiction to decree of the specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so. All that is required is that the discretion of the Court should not be arbitrary but should be sound and reasonable, guided by judicial principles.
15. No notice in terms of Forms 47 and 48, as indicated in the Code of Civil Procedure, is shown to have been given.
16. As noted above and held in
17. On perusal of the agreement Ex. P/1 and the evidential material, as placed on record, I am satisfied that the trial Court has properly exercised discretion in refusing relief of specific performance. The decree to this extent is not liable to be faulted with.
18. Coming to the question of return of the earnest money, I find that a specific plea is contained in the plaint. Issue No. 10 was framed to cover the controversy whether Respondent No. 1 had returned this amount through money-order dated 5.2.1971. The issue was answered in the affirmative.
19. According to Section 22(1)(b) of the Specific Relief Act, 1963, Plaintiff is entitled to claim the relief of refund of earnest money paid by him. This relief was claimed. It was also brought on record that the Respondent No. 1 did not desire to retain this amount. I, therefore, find no justification in not granting the decree of the refund of the earnest money together with reasonable interest.
20. In S. Rangaraju Naidu''s case (supra), it is held as under:
Rightly, the Respondent had claimed in his suit alternative relief for the recovery of Rs. 21,000 with interest thereon @ 12% per annum, Rupees 21,000 is inclusive of interest accrued on Rs. 15,500 @ 12% per annum. Therefore, in view of the facts of this case, we think that justice would be met by granting the alternative relief sought for in the suit, namely, the decree for refund of the money due to him with simple interest @ 12% per annum, as claimed by him. The decree of the Courts below is accordingly modified and there shall be a money decree for Rs. 21,000 with interest @ 12% from the date of the suit till the date of recovery. The decree of the Courts below is accordingly modified.
21. In the circumstances although I sustain the decree declining the relief of specific performance hut modify the same by directing the Respondent No. 1 to refund the earnest money of Rs. 1,000.00 to the Appellant with interest @ 12 % per annum from the date of suit i.e. 25.1.1975 till the dale of refund, as the Respondent No. 1 has made use of the money paid by the Appellant.
22. The appeal is thus allowed in part and the decree is ordered to be modified in terms indicated above. The parties are. however, left to bear their own costs of this appeal as incurred. Counsel''s fee is fixed at Rs. 1,000.00, if certified.
23. Decree be drawn up accordingly.
